Sections 159 and 160 of the Indian Evidence Act, 1872: Refreshing Memory and Testimony from Recorded Facts
Sections 159 and 160 of the Indian Evidence Act, 1872 deal with the use of earlier writings by a witness during examination. Section 159 concerns refreshing memory, while Section 160 permits testimony to facts recorded in a qualifying document even when the witness no longer has a specific recollection of those facts.
What is refreshing memory under Section 159?
Refreshing memory is the process by which a witness, while under examination, refers to a qualifying writing so that the witness can recall a transaction or event about which he or she is being questioned. The provision regulates what writing may be consulted and when it may be used.
Section 159 - Refreshing memory
A witness may refresh memory by referring to a writing made by the witness at the time of the transaction in question, or sufficiently soon afterwards for the Court to consider that the transaction was then fresh in the witness's memory.
The witness may also refer to such a writing made by another person if the witness read it within the relevant period and, when reading it, knew it to be correct.
When can a copy be used?
Where a witness is entitled to refresh memory by reference to a document, Section 159 permits the witness, with the permission of the Court, to refer to a copy. The Court must be satisfied that there is sufficient reason for non-production of the original.
Can an expert refer to professional treatises?
Yes. Section 159 expressly permits an expert to refresh memory by reference to professional treatises. This recognizes that expert testimony may depend upon technical or professional material customarily used in the relevant field.
Section 160 - Testimony to facts stated in a document mentioned in Section 159
Section 160 addresses a situation different from ordinary recollection. A witness may testify to facts stated in a document of the kind referred to in Section 159 even though the witness has no specific recollection of the facts themselves, provided the witness is sure that those facts were correctly recorded in the document.
Meaning and effect of Section 160
The section allows testimony based on the reliability of a contemporaneous or qualifying record where the witness can vouch for the correctness of the record, even though the particular transaction is no longer independently remembered.
Illustration: book-keeper and regularly kept books
The statutory illustration concerns a book-keeper. A book-keeper may testify to facts recorded in books regularly kept in the course of business when the book-keeper knows that the books were correctly kept, even though the particular transactions entered in them have been forgotten.
Difference between Sections 159 and 160
- Section 159: the writing is consulted to refresh or revive the witness's memory while the witness is under examination.
- Section 160: the witness may have no specific recollection of the fact, but can testify because the witness is sure that the qualifying document correctly recorded it.
- Common safeguard: both provisions depend on the reliability and timing of the record contemplated by Section 159.
Practical points for examination of a witness
- Identify who made the writing and when it was made.
- If another person made it, establish that the witness read it at the relevant time and then knew it to be correct.
- If only a copy is available, seek the Court's permission and explain the sufficient reason for non-production of the original.
- For Section 160, establish that the witness is sure the facts were correctly recorded even though specific recollection is absent.
- For an expert witness, Section 159 specifically recognizes reference to professional treatises for refreshing memory.
Related provision
Section 161 of the Indian Evidence Act deals with the right of the adverse party regarding a writing used to refresh memory. Readers dealing with Sections 159 and 160 should therefore also consider the succeeding provision on inspection and cross-examination relating to such writing.